Important Update on Our Efforts to Kill the NG Advantage, LLC Proposed Compressed Natural Gas "Virtual Pipeline" Facility in the Town of Fenton, NY

Greetings,

I write to provide an important update regarding our efforts to kill the compressed natural gas "virtual pipeline" project proposed in the Town of Fenton, NY. This fight is integral to our intensifying campaign to hold Governor Cuomo accountable for adopting a moratorium on all fossil fuel infrastructure project approvals in New York.

You will be thrilled by the progress we are making. I believe we just achieved a major quantum jump in organizing and advocacy effectiveness. I urge you to read about a conference call last week with high-level Cuomo administration officials. See summary at bottom.

Keep beating the bushes for more signatories to our Coalition Letter Which Requests That Governor Cuomo Adopt a Statewide Moratorium on Fossil Fuel Project Approvals

Keep phonebanking Governor Cuomo at 518 474 8390. Demand that he DENY a Stormwater State Pollutant Discharge Elimination System General Permit for Construction Activities regarding the NG Advantage, LLC compressed gas facility proposed in Fenton, NY.

Background

When Toxics Targeting learned about this "virtual pipeline" project last May, we immediately launched wide-ranging data research, policy advocacy and grassroots organizing campaign to stop the truck transfer facility in Fenton, NY because: a) we documented that New York has an extremely bad record for preventing and cleaning up compressed natural gas pollution problems, b) the project would threaten a large adjoining residential and business community and c) the facility could perpetuate our state's addiction to natural gas for decades to come.

The $18 Million project received local approval on 5/23/17, but we worked systematically to stop the facility from proceeding. On June 28, 2017, two litigation efforts succeeded in imposing a temporary restraining order on project construction until the New York State Supreme Court could hear the matter. This allowed Toxics Targeting to hammer away at the shortcomings of the proposed compressed gas facility all summer long.

On 8/28/17, a decision was handed down which nullified the site plan approval granted by the Town of Fenton Planning Board as well as the determination that the project would have no negative environmental impact pursuant to the State Environmental Quality Review Act.

See: 8/28/17 Order, Judgement & Decision Re: NG Advantage, LLC and Town of Fenton Planning Board

Unfortunately, this decision merely meant that the project applicant would have to re-apply to the Town of Fenton for approval. Its environmental impact would require a "hard look" in order to comply with the State Environmental Quality Review Act.

This was when Toxics Targeting revealed that New York State had approved a critical Stormwater State Pollutant Discharge Elimination System (SPDES) General Permit for Construction Activities on a purely pro forma basis (as a formality) based on the Town of Fenton's acceptance of NG Advantage LLC's Stormwater Pollution Prevention Plan (SWPPP).

The State's approval was clearly improper since the Court determined that the Town of Fenton's review was inadequate.

We generated media coverage which reported that the Town of Fenton declared NG Advantage, LLC would have to submit all new applications for every authorization required for the facility to proceed. This should present a formidable administrative hurdle.

Thank you Fox 40 for your amazingly in-depth coverage: Square One For NG Advantage: Company Resubmitting All Permits For Fenton Site

As you can see, the Town's Draft Review Schedule does not anticipate requiring an Environmental Impact Statement for the proposed project. The Town expects to finish up its review by December 2017 or January 2018.

See: Town of Fenton NG Advantage, LLC Draft Review Schedule

Where Things Now Stand

Local activists have been ferociously pounding away to stop the proposed project because they believe its site location is inappropriate. They want a full environmental impact statement to be completed in order to substantiate their assertion.

It is clear, however, that they do not oppose all compressed natural gas "virtual pipelines" per se. They simply want the proposed project location moved somewhere else. With all respect, this is a classic NIMBY (Not in My Backyard) strategy.

The local school district also litigated to require a comprehensive environmental impact assessment. The proposed facility is close to multiple schools.

The Town of Fenton is facing considerable internal turmoil regarding the proposed project. At least two Town Planning Board members reportedly resigned. At recent meetings, activists turned out by the hundreds and challenged every aspect of the approval process in a forceful manner.

Nevertheless, both the Town and NG Advantage, LLC have stated that they remain committed to the proposed project.

On September 26, 2017, the Town of Fenton Planning Board failed to vote favorably to declare itself "lead agency" in the proposed project review. Suffice it to say that the fate of the proposed project is simply not known at this time. It is possible that the Town of Fenton could become "lead agency." Vacancies on the Planning Board could be filled and its "lead agency" status might be approved. The entire matter remains in flux.

Momentous 10/3/17 Conference Call With High-Level Cuomo Administration Officials, Assemblywoman Lupardo, Local Activists and Yours Truly

Against that background, on October 3, 2017 I was invited to participate in an hour-long conference call arranged by the Cuomo administration to discuss the proposed Fenton project.

Participants included:

The Honorable Assemblywoman Donna Lupardo who represents a district near the proposed facility. Ms. Lupardo has been a key behind-the-scenes player in the shale fracking and fossil fuel infrastructure debates. As a senior member of Assembly leadership, her voice carries a great deal of weight. She has worked closely with Governor Cuomo on testing for lead in drinking water and promoting industrial hemp as an agricultural commodity;

Venetia Lannon, New York State Deputy Secretary for the Environment. Ms. Lannon earlier served as DEC Region 2 Director for New York City and worked at New York City Economic Development Corp;

Rajiv Shah, New York State Assistant Secretary for the Environment. Mr. Shah earlier served as Senior Policy Advisor for the Environment. He also was an Empire State Fellow at DEC and served as a Special Assistant to the Commissioner as well as Counsel to the Bureau of General Enforcement. Mr. Shah earlier served as Assistant Attorney General in the New York State Office of the Attorney General;

Ken Lynch, Executive Deputy DEC Commissioner and former Regional Director for DEC Region 7;

Julie Tighe, Acting DEC Chief of Staff/Assistant Commissioner for Intergovernmental and Legislative Affairs;

Larry Weintraub, DEC attorney;

Claudia Braymer, attorney for the residents who successfully challenged the Town of Fenton;

Maureen Singer, one of the plaintiffs in the matter;

Adrian Irons, one the citizen activists opposing the proposed project; Various other citizens and possibly other administration officials; and

yours truly.

Assemblywoman Lupardo opened the discussion by expressing grave concerns that DEC granted approval for the project even thought the state had neither assessed its public health and environmental impacts nor adopted rigorous safeguards. She called for New York to address this issue on a comprehensive basis. She said she would be exploring legislative solutions.

Ms. Braymer and the concerned citizens appealed to Mr. Lynch to address a wide range of concerns. With all respect, there was a lot of inconclusive back and forth.

Ken Lynch repeatedly stated that DEC's jurisdiction in this matter was extremely limited and that the only remedy available to the citizens was the Article 78 appeal process that they had taken advantage of.

He also asserted that DEC properly granted the Stormwater SPDES General Permit for Construction Activities based on the Notice of Intent (NOI) provided by NG Advantage, LLC after the Town of Fenton reviewed and accepted the applicant's Stormwater Pollution Prevention Plan (SWPPP).

Mr. Lynch shockingly argued that this authorization actually remained valid even though a State Supreme Court Justice determined that the Town of Fenton review did not comply with applicable law and had to be done over again.

The discussion was wide-ranging to say the least as well as generally unproductive from my biased perspective. The citizens mainly asked the administration for help that was not likely to be forthcoming.

Ken Lynch promised over and over that DEC would provide the "hard look" required by law for the proposed project. This was when I finally spoke up. As a result, I believe the entire discussion changed direction for the better and became much more focused on what we have all been fighting for.

I told the Cuomo administration officials that more than 1,000 signatories to a coalition letter had requested that the Governor adopt a moratorium on all fossil fuel infrastructure project approvals. I said those signatories did not want DEC to take a "hard look' at the proposed compressed gas facility. We simply wanted the Cuomo administration to DENY state approval for the NG Advantage, LLC project as well as all other fossil fuel infrastructure projects. I argued that the state prohibition on shale fracking provided a very sensible precedent for dealing with this complex matter.

Coalition Letter Which Requests That Governor Cuomo Adopt a Statewide Moratorium on Fossil Fuel Project Approvals

I was pointed and laser-focused in my arguments. I said that the Cuomo administration should deal with the "virtual pipeline" issue on two levels. First, we request that the Stormwater SPDES General Permit for Construction Activities be DENIED as a practical matter. Without this permit, the project cannot proceed.

Second, considering a public policy for prohibiting "virtual pipelines" warrants the urgent attention of the "Second Floor," the realm of the Governor.

I respectfully and forcefully drove the point home that approving more fossil fuel infrastructure projects was antithetical to the goal of ending New York's addiction to polluting fuels which contribute to global climate change.

Mr. Shah eventually responded tersely, "Duly noted."

I believe this was when Ms. Lannon responded that while she had not been saying much, she had been listening very carefully.

I then requested a meeting with top Cuomo administration officials in order to address the concerns I voiced. That request was echoed by Ms. Lupardo and the citizens.

Conclusion

For the first time since our fossil fuel infrastructure campaign began nearly two years ago, our well-documented concerns and sophisticated policy requests were voiced directly to key decision-makers who advise Governor Cuomo on these matters.

As a result, I believe that I demonstrated our campaign is a powerful and knowledgeable political force to be reckoned with. This is important because many of the Cuomo administration officials we worked with on our shale fracking victory have moved on.

For all these reasons, I believe we are making considerable progress toward the goal of ending New York's reliance on fossil fuels instead of just talking about it.

Thank you for all of your support. Keep slugging.

Very best regards,

Walter